The Republican court-unpacking scheme

Thursday

Nov 21, 2013 at 8:17 AM

Patricia Ann Millett spent 15 years as a Justice Department lawyer, seven of them under the second President Bush. She argued 32 cases before the Supreme Court, another 36 before appellate courts, and in 2004 she was given the department’s Distinguished Service Award by a Republican attorney general.

Patricia Ann Millett spent 15 years as a Justice Department lawyer, seven of them under the second President Bush. She argued 32 cases before the Supreme Court, another 36 before appellate courts, and in 2004 she was given the department’s Distinguished Service Award by a Republican attorney general.

After President Obama nominated her for a seat on the D.C. Circuit Court of Appeals earlier this year, prominent conservative lawyers like Kenneth Starr endorsed her candidacy. At her Senate hearing, Ted Cruz praised her "very fine professional credentials."

But last month, Cruz and other Senate Republicans staged a filibuster that blocked her nomination. This is an outrage.

Yes, politics have always infected judicial selections, and yes, Democrats have harassed plenty of Republican nominees over the years. But the rejection of Millett, and three other Obama nominees for the D.C. Circuit, goes far beyond the legitimate exercise of minority rights.

Elections have consequences. And for all presidents, one of their most lasting legacies is their appointments to the federal courts. Obama won a second term last year, clearly and decisively. Yet in this critical area, Republicans are trying to deny the public will, to overturn the results of that election. That’s un-American and unprecedented.

The D.C. Circuit is often called the second-most powerful court in the country. It adjudicates many consequential disputes between government and business, and four of the nine justices now serving on the Supreme Court came from its ranks.

The real reason for the Republican rejection of Millett and the others is obvious. Right now the eight sitting members of the D.C. Circuit are evenly divided: four named by Republicans, four by Democrats. Three seats are open, and any additional judge would disturb the partisan balance.

Republicans, of course, deny crass political motives. They are blocking Obama’s nominees, they say, because the court is underworked and doesn’t need more judges. Sen. Charles Grassley even accuses Obama of "court-packing," as if filling vacant seats is somehow illegitimate.

This is simply a lie. It ranks with the GOP argument that they favor voter ID laws to prevent voter fraud. That’s a lie, too.

In both cases, their motives are pure power politics and everyone knows it. If anyone is guilty of "court-packing," it’s the Republicans. Or "court-unpacking," to be precise, since they’re reducing the number of Democratic judges to obtain favorable rulings.

Again, let’s be clear. Democrats are not blameless. They have certainly helped inflame the judicial wars. But there is a difference.

For one thing, Republicans are far more tenacious than the Democrats in blocking judicial nominees. Democrats have held the White House for 13 of the last 25 years and yet 15 of the last 19 judges approved for the D.C. Circuit were nominated by Republicans — a huge imbalance.

There’s another point: Three of the four failed nominees are women, and one is an African-American male. Republicans, who already suffer with female and minority voters, are taking a big risk by blocking them.

Democrats are steaming, and rightly so. Some are talking about invoking the "nuclear option:" changing the Senate rules to ban filibusters on nominations.

That would be a mistake. It would engulf the Congress in total partisan warfare. Congress’ favorable rating is down to single digits but they could go even lower. And that’s the last thing either party, or the country, needs right now.

When a similar crisis gripped the Senate in 2005 — fomented by Democratic filibusters against five of President Bush’s judicial nominees — a "Gang of 14", seven pragmatists from each party, stepped in and brokered a deal. Three nominees were approved, two were shelved, and the 14 senators promised to avoid future filibusters in all but "extraordinary circumstances."

A new gang needs to step forward and find a workable compromise. They need to save the Senate from itself. Again.

Steve and Cokie Roberts can be contacted by e-mail at stevecokie@gmail.com.

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